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TMI Blog2011 (9) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracted from ITA No. 42 of 2004. 2. This appeal has been preferred by the assessee under Section 260A of the Income Tax Act, 1961 (in short "the Act") against the order dated 22.7.2003 passed by the Income Tax Appellate Tribunal, Chandigarh Bench "A", Chandigarh (hereinafter referred to as "the Tribunal") in M.A. No. 5/CHANDI/99 in ITA No. 1327/CHANDI/1995, for the assessment year 1992-93, claiming the following substantial questions of law:- "i) Whether the learned Tribunal is correct in law in passing the rectification orders impugned in the present appeal when the very basis of the rectification proceedings was debatable before this Hon'ble Court as well as Hon'ble Supreme Court of India? ii) Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce of its members as defined in Section 80P(2)(a)(iii) of the Act means that it should belong to its members and not that it should be produced by its members. The Tribunal following the judgment of the Hon'ble Supreme Court in Kerala State Coop. Supply & Marketing Federation Ltd's case (supra) allowed deduction to the assessee for the income derived by it from marketing an agricultural produce of its members which belonged to them vide order dated 23.9.1998. The Parliament amended the provisions of Section 80P(2)(a)(iii) of the Act with retrospective effect from 1.4.1968 vide Income-tax (Second Amendment) Act, 1998 which came into force on 8.1.1999. The said amendment was challenged by the assessee before this Court vide CWP No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is not entitled for deduction. We feel that when the law is amended with retrospective amendment, the fiction is that all the authorities under the statute must proceed on the basis that the law at the relevant time was the law as amended subsequently with retrospective effect. That being so, the legal fiction is apparently capable of being carried forward to hold that when the earlier order was passed, it was passed in contravention of the amended law which by fiction is deemed to be in force at that time. This clearly is an error apparent on the face of the record. Section 80P(2)(a)(iii) has been amended with retrospective effect, i.e. w.e.f. 1.4.68. The apex court has upheld the constitutional validity of the retrospective amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patent. It must appear ex facie from the record. It must not be a mere possible view. The issue should not be debatable. Mr. Sawhney contended that when the view taken by an authority is ex facie contrary to the decision of the jurisdictional High Court or a superior court, the case would fall within the mischief of section 154. However, Mr. Bansal submitted that while deciding a matter, an authority cannot anticipate the view that may be taken by the High Court or the Supreme Court on a subsequent date. If at the time of the passing of the order, the authority takes a particular view, which is not contrary to the existing interpretation of law, the provision of section 154 cannot be invoked. Apparently, the argument of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law declared by the highest court in the State or the country, still the mistake could not be rectified for the reason that the decision is subsequent to the date of the order. Only the dead make no mistake. Exemption from error is not the privilege of mortals. It would be a folly not to correct it. Section 154 appears to have been enacted to enable the authority to rectify the mistake. The legislative intent is not to allow it to continue. This purpose has to be promoted. The Legislature's will has to be carried out. By placing a narrow construction, the object of the legislation shall be defeated. Such a consequence should not be countenanced." 8. In view of the above, no illegality or perversity could be found in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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